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    A Concurring Opinion for Secession, Part 1

    Published: Thursday, February 4, 2010

    One of my most highly esteemed colleagues, Edwin Vieira, wrote a recent article entitled, “A Dissenting Opinion On ‘Secession’,” to which I feel compelled to respond, for a couple of reasons: (1) many people (including me) highly respect Vieira’s opinion and analysis, as he has proven himself to be an extremely intelligent person and favorable to the cause of freedom; and (2) the matter of freedom is too crucial not to be publically debated. Truth being the ultimate objective, I claim the same liberty as Emer De Vattel in his renowned exposition, The Law of Nations: “My pen lies under no restraint, and I am incapable of prostituting it to flattery. I was born in a country of which liberty is the soul, the treasure, and the fundamental law.” Emer De Vattel, The Law of Nations, (Indianapolis, IN, Liberty Fund, 2008), 20.

    Given the weight and importance of this subject, I must admit that the briefness of this article and the articles to follow (in parts) will not allow me to expound all of the principles confirming the right of a state to secede, for to do so would require me to write volumes. However, the principles, rationale, history, authoritative sources and conclusions contained herein should be sufficient to rebut the anti-secessionist claim and to inspire the reader to study for himself or herself this crucial matter.

    The Crux of the Matter

    Allow me to restate what the issue really is regarding the matter of secession, for the truth of the matter will only be revealed through a precise restatement of the deciding issue. Secession is a question the true character and nature of our union. The most articulated opponents of secession and state sovereignty have advocated their position this way:

    “The federal laws are the supreme laws of the land, unless they violate the constitution. If they violate the constitution, they are void and null. So, who is to determine if those laws violate the constitution? Answer: the US Supreme Court–they are the final arbiter. No other political department (state or federal) has the unilateral power to contradict what the supreme court has determined to be constitutional. This includes the matter of state sovereignty and the limits of the same (e.g. secession). Since the supreme court possesses this power, this automatically means that the states do not have the power to do any act contrary to the federal law until the supreme court rules that the law is unconstitutional.”

    Thus, the issue comes down to what is the nature of our union and consequently, what is an individual state’s right to exercise its sovereign powers to unmake a constitution for that body-politic, which was formed for the protection of that particular society’s interest and freedom. Is this state sovereignty controlled by the federal supreme court or not?

    Proponents of Secession throughout the United States’ History

    Let us be clear on this: some of the most well-recognized intelligent and articulate statesmen and patriots throughout America’s history have advocated the right of States to secede from the union, both under the Articles of Confederation and United States Constitution. Alexander Hamilton admits this in Federalist Paper 22: “[t]he doctrine of [secession] itself has had respectable advocates.” Likewise, Justice Joseph Story notes that the principles of secession represent the opinions “of a large body of statesmen and jurists in different parts of the Union.” Joseph Story, Nature of the Constitution – Whether A Compact, Book 3, Chapter 3, Section 319. Astute constitutional scholars hold the position of the states’ right to secede similar to the following: “It is not to be understood, that [the Union’s] interposition [on the states] would be justifiable, if the people of a state should determine to retire from the Union.” William Rawle, A View of the Constitution of the United States of America, 296.

    Some will try to paint advocates for states’ rights as loony, nutty, irrational or otherwise enemies to the union, but the truth is, some of the most highly-respected, intelligent, articulate, and educated men in America have fought and died defending this principle and corresponding right, and did so in attempts to preserve those principles upon which the union was formed to begin with. For those who would impugn their character deserve little or no respect and simply desire to rid the United States of this highly regarded and well-accepted principle of political maxim and truth. (As a side, their attitude proves that the federally-controlled education system has done a great job at distorting history and issues!)

    The Relevance of Secession

    For the first time in generations, the matter of secession is once again being publically debated, but perhaps not enough; for the principles underlying the positions for or against secession will create the means of redress against tyranny. As I have written about before, there are candidates throughout these states who are running their campaign on state sovereignty and the tenth amendment. This matter is more alive than it has been in a long time, so the people need to be informed properly.

    So, here is a small observation or lesson for those wanting to learn about constitutional construction: constitutional interpretation is molded by one’s underlying assumption of the true nature and character of the union and by one’s decision regarding whether the constitution has a fixed meaning or can evolve over time. A proper analogy may be this: one’s determination of whether there is such a thing as “sin” or “morally wrong behavior” will be predetermined by their assumption of whether or not there is a God. If one assumes there is no God, then his interpretation on the morality of human actions will certainly be led by his underlying assumption. If one assumes there is a God, then likewise.

    With certain assumptions given, we see why in the 1940s, the US S CT ruled that Congress has “plenary power” to regulate the states, to the exclusion of and at the expense of state sovereignty, which expanded Congress’ power to regulate commerce, etc. to an inconceivable extent, contrary to the intent of the Constitution. This is why we see Congress taking over virtually every major (and even minor) area of our lives. The courts’ underlying assumption: the US Constitution’s nature was one of the WHOLE PEOPLE not of INDIVIDAL STATES, and state sovereignty and power is not to get in the way of Congress’ power.

    Therefore, we see the crucial need in determining where the roots are below ground and what they are made of before we can analyze the trunk, branches and fruits which proceed from the roots. What is the result of ignoring the determination of underlying assumptions? Well, let’s just say, we get what we pay for, and apparently, slavery is cheap.

    More to Come…

    What will be seen throughout these articles is that the states never waived their power and right to secede from the union. To the contrary, you will see that the states actually and expressly stated in their ratification documents that they could recall the powers granted at any time at their will. We will see that the nature and character of the union is not one nation formed by one mass body of people, but is union formed by the assent of sovereign states by means of a federal compact. We will see that the federal supreme court does not possess the power to change the nature and character of the compact, nor does it possess the power to limit the states’ sovereignty retained in the tenth amendment.

    We will see that the individual state’s right to resist federal tyranny is not conditioned upon the approval of three fourths of the states or federal supreme court. We will see that a state has the power and yes, the duty to protect its sovereignty and the powers granted to it by the people of that state. In the end, we will see the proof that evinces the intent of the ratifiers of the constitution to retain the right to secede from the union.

    Copyright (c) Timothy Baldwin 2010


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